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Author Panel on the Supreme Court Education. (2012) Author panel on the Supreme Court, with Clare Cushman, Anthony Franze, Todd Peppers, Jeffrey Toobin and Artemus Ward. New.

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Us 9, Roberts 6, Washington 4, Marshall 4, Harry Truman 3, Byron White 3, Holmes 2, William O. Douglas 2, Breyer 2, Douglas 2, David Souter 2, Warren 2, Thurgood Marshall 2, United States 2, James Mcreynolds 2, John Marshall 2, Sandra Day O'connor 2, Clarence Thomas 2, Jenny Thomas 2, Scalia 2,
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  CSPAN    Book TV    Author Panel on the Supreme Court  Education.  (2012)  
   Author panel on the Supreme Court, with Clare Cushman, Anthony...  

    December 1, 2012
    4:15 - 5:29pm EST  

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behave in the future and -- [inaudible] to the take from what happened. >> i try deal with a rating agency at least to some extent in the book. you have to. and i would add to your list the fact that when a particular analyst was really good and really understood things, then they could trouble their salary by going and working for an investment bank to structure product for another rating. it's a really difficult situation to some extent when we looked at moodies you had a sense that a lot of these firms were cautiously investment banks when they were partnership because in a partnership you can lose everything. and then they turned to share hold the own companies, and you had a sense with them that when they spun off and went on the own, they picked up a lot of
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incentive to take risk and i have a chapter on the book on organizational structure and how to that can shape risk taking. i'd like to go to the other side of the equation. there's a section in the book, and i would imply this to the regulators as well and everybody and board members the power of simple questions. in other words, there are certain simple questions you, when you ask them and pursue the answers you learn something. in the late 2000s fannie mae took a large hit for an ordinary company not large for them because they were such a big company on manufacturing housing loan. in 2003, the chief credit office at fannie mae wrote a report saying one of the lessons is you can't trust the aaa rating because -- we bought aaa pieces on the mobile home loans and they createred on us. -- craters on us.
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again, if somebody starts to ask questions and say why aren't you doing due diligence on what you're buying regardless of whether it has a rating and remember underneath the rating in terms of the contest were concentration issues. a aaa of one kind may be different if it has a dispersed amount of assets behind it versus concentrated all in sub prime in las vegas you name it. so in the end, the only answer, really, is due diligence, that investors fell down. lou in a wonderful quote said, no one was defending the deal. you didn't have two sides, you had sort of this prosperity that everybody thought would never end of all this money flow income from overseas. investors were rushing to put it someplace. and aaing looks pretty good
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particularly when it's a sub prime aaa security i can get a higher yield than if it were prime mortgage and a aaa security. you know, the simple question, risk can return are correlated. somebody had to ask besides edmund clark what's going on here. >> i think it's a part here. as a self-promotion. i would encourage you to look in august i came without a paper online at cato.org and offer descriptions how it failed. i would like to thangt panelists. i think it's been a fascinating discussion. i got a lot of the book and encourage everybody to take a look. i would to thank you and welcome you downstairs for lunch. again, thank you. [applause] you're watching booktv on c-span2. 48 hours of non-fiction authors and books. every weekend.
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c-span, created by america's cable companies in 1979. brought to you as a public service by your television providers. next from the georgetown university law certainly in washington, d.c., a discussion on the supreme court. it's about an hour ten minutes. hello, everyone, want i want to welcome you to the program which features an al star lineup of authors who will be doing the most recent book on the supreme court. i'm a professor here at georgetown. and executive directer of the supreme court institute. it's a real privilege for the supreme court institute to host this event, and i'd like to thank our deputy directer dory burn seen to putting it together.
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before i turn the program over to our moderators, i'd like to remind thearch after the program, we have a reception following in which you'll gate chance to have all your newly purchased books signed by the authors. have a word or two with the authors, hopefully, and as you can see, we have food and beverage, so please stick around after the program. with that, i would like to introduce our moderators. today for today's program tony morrow. tony needs no introduction at all. i'll keep it short and tell you that tony has long been one of the nation's most influential journalists covering the supreme court. he is currently the supreme court spond for the national law journal and his work on the supreme court insider is must reading for anyone who wants to figure out what is going on in the court today. so with that, tony, the program
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is yours. >> thanks very much. very kind introduction and thanks also to dory for your work on the panel. it's a great treat for me to be here as moderator. this event, i have written enthusiastically about every author here. i'm a big fan of anybody who sheds more light on the supreme court and they have done a great job of that. and thank you to the audience for attending and thanks also to c-span and booktv for being here as well. this should be a fun hour. we are here to celebrate and explore a category of bocks that seems to be growing. books both non-fiction and fiction about the supreme court of the united states. the supreme court doesn't seem to come out much during the presidential debates. it generates a lot of bocks. i can tell that from the pile of
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books on my desk that come in and i never quite get to all of them, unfortunately. the authors we have on the panel illustrate the range of works about the supreme court. we have claire cushman who written a wonderful history on the permit on the court. we have jeffery toobin is as fresh as today's headline or breaking news alert. there's fiction too. anthony francis book is a fast-paced thriller which six justices justices are shot by the second page. a long -- it touches a lot. it teaches a a lot how the supreme court works. then there ared to peppers and art ward who have written several books about the justices and the law correct. -- clerk. you might wonder what do they have in common besides the fact
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they are about the supreme court. i believe that all the books are built on the founding assumption that the supreme court is about more than just the opinions. to understand it fully, you need to know about the justices' backgrounds, the personality, personal dynamic, and with each other and with their clerks. this is a perspective that is not always been popular with the supreme court which is an intensely private constitution. i remember vividly when i was writing about the pension for privacy in 1993, that the court spokeswoman then tony house told me very firmly the court -- this is a quote, the court is perfectly comfortable being in the public eye as an institution but not as individual justices. they don't think whether they play tennis or championship fox trotters has anything to do with whether they are good justice. things are changing.
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contrast that with what chief justice roberts wrote in a forward to clare's book last year. it sets asides the black robes and delves to the private side of the the court catching relations between friends, family, and one another. it will delight all those who want to look beyond the portrait and gain view of the individual who quietly contributed so much to the work of the court and the advancement of justice. we are in a new era, really, of supreme court historiography. i think we should raise it. it any my own career i -- as much as the.of the court and makes for interesting reads as all of the authors illustrate. so to start it off, i think i'll ask question about this point whether why pernltd and background are important. i hope the panelists will use this as an opportunity talk
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about the books and tell stories. then we'll have further discussion and eventually i'll open it to the audience and there's a microphone that will ask you to use in the center aisle here. so first i'll ask clare cushman to speak about her book court watchers. clare is public indications of the supreme court historical society. maybe you can give us -- tell us about your book and example through history how personalities played an important role and how the supreme court does the work. >> thanks, tony. well, i wrote a one volume narrative history of the supreme court ha has absolutely no case flaw it. which is a little bit shocking to some people. my intent was really to show a history of the institution and the practices and traditions. and how they have evolved over time. and what i really wanted to show what it's like to be a supreme
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court justice or what it has been like to fill that role. and how the justices go about doing their jobs. something that really is very relatable to more general audience than sophisticated legal audience. so the themes that really interest me in supreme court history are things like how the newly appointed justice learns the ropes and gets broken in, sort of. how the justices collaborate and work together, sort of the organizational psychology of the court. i'm interested in workload, how they manage the work, how they get it done, how they deploy the clerks to get cone. and also interested in showing how the justices know when it's time go. when it's time to retire. so i looked at the themes and i also looked at the evolution of practice is like oral argument, which probably has -- is one of the traditions of the the court
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that changed the most in the 200 years. under the marshall court, the oral advocates have unlimited time to get their views across and could speak for days and days. in fact, they like to lace their speeches with illusions to shakespeare and bible and roman law and they were equally addressing the ladies in the courtroom audience, and who were all dressed up in the finery to come hear the speeches as they were justices. but in the days, the justices had not been given written briefs before the cases, and they often hadn't really thought about the case much before the oral argument started. they mostly sat in rapt silence listening. obviously oral argument has changed enormously over time, and the introduction of written briefs and the 1840s changed
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things as did the wilgding down of time. as you know, we now see these advocates who have thirty minutes to gets the points across and the justice who are fully briefed on the case jump in very quickly and ask them questions. so that's one example of looking at a supreme court practice that changed enormously. i wanted to show what things haven't changed. there are a lot of traditions, as you know the court is tradition bound, that stayed the same. for example, how the justices feel about their salaries. [laughter] as you know, chief justice roberts and -- have been active to change the salaries of all justice who make significantly less than they would in the private sector. even compared to law school dean or senior law professor.
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there's a great gap. but i went back and looked a the the same issue in the 1810s and looked how say joseph story, who was on the marshall court felt about the salvation army and complained to congress and asked for a raise daniel webster was making thirty times as much. then i went and looked at the same issue in the 1860 and chief justice -- said the same thing. you know, the retired generals who fought in the civil war are making more than we are. so my book traces the evolution of a lot of these chufm -- customs and practices. the way i went about showing the constitutional history by using eye witness about dotes. because i wanted to give color and life to what could be a dry book if you write about institutional practices. most people will fall asleep will so i used letters, memoir,
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diary, old interview, current interview with justice to try to bring to life. talk a little bit about some of the sources? >> yes. >> okay. so a lot of the -- excuse me, a lot of the sources i drew on are fairly well known to scholars, but some of them have been neglected or haven't really seen the light of day in the last fifty years. so i dredged up a lot of old things, but one of the sources that i drew on a lot, which i absolutely adore is the diary of elizabeth black, who was hugo black's second wife. she was his secretary. they were married in 1956. she kept a dairy until his death in '71. ..
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one of the things about eye-witness accounts is that you really can't describe them. you can't paraphrase them. you have to go right to the source. almost invery my on an opinion he thinks to be very important, eawakens in the middle of the night think about it. soon he pulls the chain to turn on the light. darling, he says to me can are you awake?
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by that time i am, of course, fully awake. i am bothered about a case. tell me about it, i say. well, this is what it's all about. then he recounts in detail and with passion the horrible injustice being perpetrated on a person because of his brethren's failure to see it his way. i wail -- will have to weigh on narrow grounds. sometimes this unwinds him. sometimes not. if he doesn't feel he can go to sleep, he says, now, it's 3:00 in the morning, i've just got to be fresh for the conference tomorrow. i need sleep. what do you think i ought to do? then i suggest, why don't you take a little bourbon to make you sleepy. he is very prohibitive about taking liquor and wants me to be the one to suggest it. so he pours a splash of bourbon on ice, fills the glass with water, and soon is sound asleep. the next morning he awakens as
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bright and clear-mined as can be, and he approaches the day with his usual eager zest for life and vast good humor. so one of many thousands an tech -- anecdotes in my book to happen people understand how it is to be a supreme court justice. and how they go about doing their work. >> next is anthony franze, and he spent many of his days writing about the supreme court, but to the supreme court in the form of briefs. he is here to talk about the book, not the brief. it's the legal thriller called "the last justice." you maybe tick classily researched the court for this book so tell us about your take on the importance of personalities and understanding the court.
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>> well, with regard to the justices, as tony mentioned, the first couple pages of my book, the entire supreme court is assassinated. so mat very many surviving justices in my book to go too much into them. but i -- personalities mean a lot. from a fiction writer's perspective it's about the characters. you can have a great -- the best plot around but if the reader doesn't care about the characters, then it's not going to matter. so, i researched. i read everything i could about the past justices and the judicial community, and tried to bring some of that to life. this is a legal thriller, so you got to take liberties. i never met anybody who engaged in the horrible things people do in my book, but i did try and make it -- the characters
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believable, at least in the context in which their daily lives and the roles they play. i did get a reality check about the realism of my characters. i got an e-mail from a federal court of appeals judge who had comments about my characterization of judges, and i really enjoyed the e-mail, so i asked the judge if i could -- if he would mind if i shared it, and he said essentially, i've got life tenure, why not. so here it is. there mr. franze. i read your novel, "the last justice" from cover to cover in just a few days, and i really enjoyed it. so far i liked the judge. and i do have one gripe, however. the justices and judges in the novel seem to me to be more highly sexualized than in real life.
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at least in my experience. [laughter] >> i suppose, however, your characters give surist everywhere something to jurists something to aspires to so maybe i didn't get it perfect. so, for me, it's not about the big decisions when i'm trying to come up with people who aren't real. it's fiction. but i do hone in on some of the personal things you read about the justices. for me, i -- the fact that one of the justices was in charge of putting a yogurt machine in the courtroom's cafeteria. the fact that last week chief justice roberts was asking, what's one of the things you don't really care for about your role? and he, like many of us, said i hate all the administrative work. doesn't deal with my decisions. and it's those kind of things i grasp on to that make the
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justices human and we can relate to them more, and readers can relate to them more. so that was the kind of thing tried to capture in the characters in my novels. >> your book is one of the few books that gives a central role to the solicitor general. not normally viewed as a highly dramatic position, but it works very well. next i want to ask jeffrey toobin to speak. a wonderful writer and new book, "the oath," is second on the supreme court. i just finished reading it, and jeff does a marvelous job of shifting back and forth between then court, the people, and doctrine. i read a "new york times" review talks about that emphasis on personalities as well as opinions.
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so, d. >> let me talk about the supreme court by the numbers. there are six men and three women. first time in history, three women on the court. six catholics and three jews. first time in history there are no president cities -- protestants. there are representatives from the new york city burrows, one from queens, ruth ginsburg from -- tragically staten island is unrepresented. so those are some facts about the supreme court which i home are interesting. here's a fact about the supreme court that's important. there are five republicans and four democrats. the supreme court to me, anyway, is most important as a political institution that renders largely political judgments about the issues that come before it. i don't say that as criticism.
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i often, in forums like this -- why do they have to do so much politics. can't they just decide the law? well, when they decide questions like, does the constitution protect a woman's right to abortion, does a university consider race in admission. those are as much political decisions as legal issues, and i am most concerned about the cower as a ideological and political institution and that's reflected through the personalities of the justices, but mostly it's reflected through their ideology, and i am obviously very interested in the justices as people, but to me what's most interesting about them is their political views. for example, the last three justices to leave the court, three more different human beings you will never encounter.
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sandra day o'connor, tall, outgoing, charismatic, former politics from arizona. david souter, shy, from new hampshire, downpaul stevens, wiley antitrust lawyer from chicago. totally different personalities. what do they have in come? they're all moderate republicans who left the supreme court completely alienated from the modern republican party and that's what is important about them to me. just as moderate republicans have disappeared from the united states senate and certainly the united states house of representatives, they have disappeared from the united states supreme court, and that to me is the most significant thing about the supreme court, which is the decisions they reach, why they reach them, and why those decisions matter to people in the real world. >> all right, finally, we have
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todd peppers of roanoke college, and robert, who wrote a book on the justices' law clerks and which. the new book, in chambers, is a fascinating collection of narratives and essays from clerks about their justices. so todd and art, can you tell us those stories and how they reveal something about the court and the clerks? >> approximately five years ago, i came up to washington, dc to interview a guy named william coleman, jr. mr. coleman, who is now, i think, 93, and works 12-hour days in d.c., was of interest to me as a subject because he was the first black law clerk on the supreme court. i came up, got a good rate to
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stay at the a mayflower hotel near washington, dc. and i went over to interview bill, and we we are making chit-chat, and bill asked me where i stayed the night before. and i told him the mayflower and how nice it was and harry truman's favorite hotel, and bill said, you know, in 1948, when i clerked for sf, they wouldn't serve me at the mayflower. and he started telling me a story about lunchtime, when he and his co-clerk, elliott richardson, who would go on to hold more cab it in positions than anyone in american history -- were planning a lunch outing and decided to go to the mayflower. a couple minutes before they were going to leave, el yet came back to chambers and rushed into sf's chambers and there was a hushed conversation, and franklin came out close to tears and at that point elliott said,
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let's just go to union station, which is one of the only three people in town that would serve people of color in 1948. for he mat crystallizes why i enjoy studying law clerks. it's personalities, not only the justices and the clerk, clerks who have gone on to fame and fortune of their own. warren christopher, secretary of state, clerked for bill douglass. five law clerks who returned to the supreme court. i enjoy the stories as they shed light on these relationships. the stories shed light on the relationship between judicial attitudes and personalities and judicial behavior, and also because the supreme court clerkship is about, number one, when it comes to internships in this done there, and in 1998, when i was in graduate school, thinking about a clerk, i read a series of articles written by
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tony mauro about the law clerks -- the supreme court justices' law clerks hiring practice, and when the justices were not hiring very many women and were not hiring people of color. and those issues also important because they raise questions about social justice. in terms of whether the supreme court is following its own dictates in terms of a level playing field for all people in the work place. so, i have been studying law clerks, and art has been studying law clerks since probably -- give us a year -- 1998 to 2000, and what comes back to me remember the stories. the stories of a dying john marshal holland ii here in a local hospital. dying of spinal cancer, and his clerk, brings him whiskey and cigarettes. the fact that felix died penny less but for the next 15 years
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his law clerks took care of his wife, marian frankfurter. so whether you're in a torts class or common law class you can never go wrong talking about holmes and it's the same thing talking about law clerks. for holmes, his law clerks were his surrogate children. they were the individuals which had to listen to his stories about the civil war whether they wanted to or not, and holmes had law clerks who walked around in the district of columbia. they wouldn't talk about cert positions. and when corcoran couldn't keep up his end of an argument about dodd and the universe, holme assigned him the task of reading the old testament and coming back so they could continue their argument. so it's those types of stories that captivate me, and i think show an aspect of the supreme court clerkship, which has vanished or is vanishing. so in the 1920 and 30s you had
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one, maybe who law clerks. the justices did much of their opinion writing but the pressure wasn't there like they are today. today the justices have four or five law clerks. justices are consumed with question about secrecy and confidentiality, and now nine little law firms. i don't think the justices and their clerks have time to walk around the district of columbia and look at the tuba, like hole ems liked to do, or stay up until midnight with hugo black, arguing about thomas jefferson and his views of the role of the church in a dem democratic republic. and one of the things that is fun is trying to find the stories, unearth them and reserve -- preserve them. >> they only decided 65 cases last year that should be able to walk around and look at every flower in washington.
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>> when who have four law clerks and lexus nexus, and the internet. >> the work expands to fill the time available. >> the other thing which is fascinating is the justices' attitude toward the law clerks. a couple years ago at american university anton any scalia gave a talk, to thed the university of law students that he couldn't afford to hire them. not afford in terms of salaries but couldn't take a chance on them bought the work is so important that god for bit he might get a law clerk that wasn't up to work. earned the justices want to have this fiction they do their own work. you can't have it both ways. you can't look beyond harvard, really, and stanford for clerks. >> that's a really good point. one thing to say is that 100 years ago they did do their own work. there were no law clerks.
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how did they possibly get anything done, let alone look at the tulips a hundred years ago. i want to agree with what jeff toobin said about politics, and extend what he said about the politics among the justices and the politics among the clerks, and between clerkness different chambers and between the clerks and justices. that's what interested me. a small working group of individuals that are dealing with biggest political issues of the day, and so when i do research on clerks, what i find is that the clerks are -- i think their influential in this process. i know it's controversial to say so, but if you look at the process in a wholistic way you find that clerks are -- in fact they're required to give their opinions on the matters that are being decided by the court or potentially decided by the
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court. they lobby their justice, and the must, by saying we should take this case or should not take this case, not just in terms of the law but in terms whether it's a good time to take the case politically because of the presidential election, these sort of political issues behind the scenes are what fascinate me. and one of the things i've written about is this idea of the clerk network, which is the clerks lunch together and they play basketball together and they commute into work together, and they're endlessly talking about the cases and where their justices stand on the cases, and, well, do you think your justice could move in this direction if i said this or got my justice to say that? so in evens the clerks or the immediate area in the coalition formation process, and the justices don't talk to each other that much anymore. they don't call each other on the phone hardly.
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they don't really have conversations in conference that much to each other. it's the clerks having the conversations, and i think that's one of the things i'm interested in. >> i want to -- before i move to the next set round of questions, i want to stay on the subject of clerks. in the context of what happened -- we saw this summer, the leaks that occurred after the court term ended, about all the back and forth concerning the affordable care act decision. landmark case on so-called obamacare. there's been a lot of talk about whether the clerks were the source, or how could they possibly be the source? they swear to confidentiality. what's your thought about the leaks and how they came about? >> can we just at least say how
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insufferable so many of these law clerks are. the pretentiousness and the self-importance that comes with a supreme court clerkship -- well, not all to be sure but that's certainly ate least in my experience, part of it. >> that's why they -- >> well, you know, the ones who would talked to me have exquisite judgment and are tempermentally fine people. but -- it's the people who hang up on me when i speak about insufferable. you know, i was very surprised by what went on this summer, and i kind of reconstructed it, for my chapter on the deliberations in the oath in the affordable care act case. think it case indicative of the high stakes in the case and the peculiar and unexpected role of the john roberts played, just to fill people in who don't -- aren't aware, chief justice
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roberts was the vote in motion during the deliberations, and he moved to a more pro affordable care act position over the course of the deliberations. the case was argued in march and was decided on june 28th in may, conservative columnists, george will, the "wall street journal" editorial page, started writing pieces that said, we hear that chief justice roberts is getting wobbly on the affordable care act and we want him to show how hough he's going to be. and a wall street -- a national review writer and editor, gave a speech at princeton, at a reunion, saying my sources at the supreme court say that roberts is moving to a pro affordable care act position, which is really quite extraordinary. and he was quite right. my information is that those
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leaks did come from clerks. perhaps to their -- the judges they had clerked for in the circuit courts and then into the media bloodstream. my position about all this is generally pro leak and pro disclosure. so what this happened? i don't see what harm was done it don't understand why that's process has to be so mystified and secret. obviously within some reason. but to me it was just illustrative of how passionately, particularly conservatives, felt about this case, but i don't think there was any particular harm from it. >> in 1987, a small working group of sandra day o'connor, byron white and bill brennan, drafted a law clerk code of conduct, which i think was slightly tweaked, and then in
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its final form was adopted by the court in 1989. now, you and i can't write the court and ask for a copy of this code of conduct because the supreme court has refused to release it to the public, which i think is problematic unto itself but i found a copy of it in the personal papers of thurgood marshall. the code of conduct says the law clerks have a duty of confidentiality to both the court and they're justices, because there was some suggestion at the time of the leaks that maybe one or two of the justices authorized the clerk to go off the reservation and talk to the press. regardless of whether that's a good thing or bad thing in terms of living in a democratic society and being transparent, that blatantly violates the code of conduct. even if a justice authorizes you to talk, you're still violating your duty to the supreme court as an institution, and over the last 20, 30, 40 years, we have
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seen repeated instances of selective violations, starting with the brethren, all the way through eddie hasser's book, closed chambers and through this spring. i was not a supreme court law clerk. i clerked in federal district court bit i know that confidentiality is important in working for judge or justice. i bothers me because i think they're violating what is an ongoing duty of confidentiality. on the other hand as a researcher it's a delight because no one talks to me. there's a duty of confidentiality out there and they violated it. >> thank god. >> we should also point out the justices are violating it themselves, then, because the brethren shows that five justices, i think, spoke to woodward and armstrong for that book. and anonymous at the time. but we know who they are now. and so if the justices are talking to the press, and they
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may very well have been before the affordable care act was passed, what about the confidentiality? >> the -- i want to get a view from all of the panelists on another area, and then we'll bring in the audience. that's the -- how you go about researching the court when it's such a -- getting information about the court when it's such a secretive organization basically. i'll never forget when chief justice rhenquist was talking to a group of reporters at a social event and there was a lull in the conversation, and he said, to us, as reporters, he said, you know, the difference between us and the other branches of government is we don't need you
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people. it was quite an icebreaker, and -- but by implication, the supreme court doesn't need book authors, either, and so some of the justices i know are not very interested in helping or talking to reporters. so, how did you good about your work? in this regard? >> piercing the privacy. >> well, let me say at first, what i want for creams, is jefery toobin's sources because you have done a wonderful job, and i don't know how, pulling back the curtain. >> can i say about my sources. i call law clerks and speak to justice, not all of them but some of them, and -- but the best thing i did for "the nine" the single most useful trip i took was to west lafayette, indiana. what's there?
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the c-span archives. brian lamb went to purdue and sent all his archives there. the justices are on c-span a lot, and you'd be surprised how much is out there in plain sight. they -- a lot of these justices like to talk, and they like to talk about themselves, which is a common phenomenon in human interactions, and i sort of went through a lot of these panel discussions, and speeches at law schools, and there was gold. there was gold in there. unfortunately, in between the o'thine now "and "the oath" c-span but its archives on the web so i didn't get to back to west lafayette. the same idea. there were more -- my editor likes to say about reporting in general you'd be amazed how much
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is in plain sight, and i thought c-span was an example of how much was in plain sight. >> to also flip your question around for a second, what i am concerned is one source, which is drying up, and most of my research i've gone to the library of congress where the justices have their personal papers and a couple years ago when harry blackman's papers were opened up there was pushback by the court because justice blackman didn't throw away anything. every single christmas card, it's there. conference no notes, its there. you go to byron whites papers, and there's nothing there. the papers have been sanitized. there's not even a correspondence file. my concern is because some of us are using these types of sources and maybe because the court is more sensitive or more political, the supreme court justices' papers, which historically have been a wonderful source of information, that's going to go away.
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some papers are sealed for decades. warren burger's papers don't open for ten years, or o'connor and they might open up after i'm dead. but historically that's been a great source of information and i'm worried about history. there's famous story of bess truman burning harry truman's love letters and harry truman saw her and said, what are you doing, think of history? and she replied, i am thinking of history. and she burned the letters. i'm worried the justices are thinking about history, too, and it's to our detriment. >> i want to talk about asking justices for interviews. i do think that if you ask them for an interview on a particular topic they feel comfortable talking about -- for instance, justice breyer, a fairly easy justice to interview, about what
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it's like to be the senior justice because he served for almost 11 years in the role of senior justice. i think he was bested by joseph story for a couple weeks so he notice record holder but he was happy to talk about that aspect of the court and how seniority fits into it. so it's easier to approach them about a certain subject. in my book i was planning on interviewing them all, and at jeff was saying, c-span did this wonderful series of interviews of the justices,, and i think they went in to ask them about the building, the court building, and they just started throwing out some other questions and got some very fruitful responses and kept going. so, when i was about halfway through my book, these transcripts came out, and i realized all the questions i would have asked them were being asked by c-span and i just need
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ed to kind of distract the golden nuggets and put them in a narrative format to make them come alive. but as jeff said, i think the justices often can -- they have -- they answer questions in the same way so i didn't feel like i needed to go back and reinvent the wheel, except for my open personal glory. in certain aspects it was already out there. >> jeff is right, there's a lot of information out there already. clare mentioned easterly idea about retirement decisions of the justices. something i have written about. i'm sure some of nowouts, when justice scalia was on his recent book tour he was asked about retirement, and he did not give the standard answer. he actually told the truth. the first time in history of the supreme court where a justice came out and said, in multiple interviews, i'm going to retire
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under a like-minded president. why i would establish an entire judicial record for decades and decaded and leave under a president who would appoint someone who would undo it. he admitted it. i spent years trying to prove this, and scalia just comes around and -- into i think the idea is when the justice are in public and they're being asked questions, they might be willing to say more than we give them credit for sometimes. and we can mine some information for clues as to the what really goes on. >> you really want to talk about the difficulties, try calling a justice and saying, i'm going to write a legal thriller about how someone assassinates all the justices. [laughter] >> so i of course didn't do that. what i did do is i relied on the great works out there which total coincidence -- i took a
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lot of pride in trying to get the supreme court history and procedure right, even though it's a legal thriller, and i read hundreds of articles and books, and in my note section at the end of the book i point out the articles or books i felt most helpful in that regard, and i eled out tony's great reporting and every one of the panelists' previous books. i think they do a great service to educating the public and writers and everybody else about the court. >> i share todd's concern about the future of the records that will be available. from the justices, and they're papers. i asked once about what the justices are doing about the e-mails. there is any regime for saving e-mails, and i was told, no.
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there really isn't much of a rule. they still -- well, most of the communication is on paper but no rule busy e-mails and the justices' papers are not governed -- are not viewed as public documents in the same way the presidential papers are. i once asked the archivist of the united states why justices' paper aren't treated the same way. he said, have too many friend on the supreme court. i don't think i'm going to answer that question. which doesn't seem like a very public minded. this is not the kind of archivist -- doesn't seem like a very public-minded approach. anyway, i think why don't we have questions from the audience about all this. if you could go to the microphone there, please. >> the reaction to that -- was
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incredibly -- they're very upset. do you think the judges have become desensitized to the links. >> "the brethren" was published in 1979 there wasn't really a behind the scenes book about the supreme court -- putting aside the book because he was there d journalism about the supreme court between 1979 and 2007 when i wrote "the nine." i think there is some generational change that has gone on at the court. i think the justices who are on the court under -- in the burger court were of a very different generation where the press was not a major factor in their
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thinking. you now have several justices in their 50s who grew up in a different environment. i'm not saying that they are more welcoming to media attention, but they came of age in a world where they -- remember, look, justice scalia has written a book, justice thomas has written a book, justice breyer. william o. douglas, justice sonia sotomayor is writing a book. i think it's great when they go out in public and write books and talk about it and become a little more accessible. >> it's funny about "the brethren" because the law clerks born before "the brethren" feel that byron white's relationship
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with this clerks changed bought he was furious about the leaks, determined to figure out who leaked and the clerks think something changed and the rules in the chambers and conversations with the justices, et cetera. i don't knee whether the justice -- all their attitudes have changed but when you look at newspaper articles that were written at the time to disclose chambers, written by eddie has lazarus, and sure surrogates who were saying this young man should be tarred and feathered, and scalia said if any of his law clerks did that, he would hunt them down. i think some would be just as furious if it happened today. >> i would like too ask all five of you if you would tell us your favorite humorous story about a
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justice for the supreme court. >> i would love to tell you my story about thurgood marshall when he had pneumonia and was taken to his bethesda naval hospital. this is 1975? anyway, richard nixon was president. and i think nixon was hoping to get a vacancy on the court to sell, and so one day one of marshall's doctors came to him and said, the president has requested that we send over your medical records. and he had pneumonia. nowhere near on death's door. and marshall said, well, of course you can send them over, but let me just -- can you just give me a black sharpie so i can write on the records before they
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go over, and he wrote, not yet, exclamation point. [laughter] >> the source of all really good law clerk stories has to come from william o. douglas. whatever justice douglas was as a protecter of the environment, by most accounts he was a terrible man to work for and there's a story by one law clerk where doug lossson summoned him and asked him if he had written inside a new york -- united states reporter and the young man denied it. and he was saying in rage, books are temple. and then douglas takes the book and throws it, but he throwses it to hard and i get to out the window and lands on the ground and cracks the spine. and the law clerk stands there and didn't know what to do after
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being lectured how to take care of books. >> one time not too long ago, justice souter was driving from here to new hampshire and stopped in a restaurant to get something to east, and a couple came up to him and the guy said, i know you, you're on the supreme court. right? >> he said, yes. >> you're stephen bryer, right? and he didn't want to embarrass the fellow in front of his wife, and he said, yes. and they thatted which then the guy asked question, what is the best thing about being on the supreme court? he said, i have to say it's the privilege of serving with david souter. how can you not love that guy? >> i will cheat a little bit. my book is as much about the characters trying to become justices as opposed to the justices themselves as the
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backup of my story, what would happen if you had to replace the majority of the court. and my favorite is nominee named harold carswell, and carswell was considered not the highest caliber nominee for the supreme court, and he got panned in the press as being a mediocre lawyer, and in one of his senate handlers trying to help, went out to the press and said something to the effect of, there's lots of mediocre lawyers and judges and people out there. don't they deserve representation, too? and so that was the end of his chances to become a justice on the supreme court. >> that was roscoe from my home state of nebraska. >> i think that's one of the things todd and i were hoping to do with our book. not just to talk about some of the politics and behind the
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scenes procedural matters but the fun things that happened on the court, too. and the funny moments. i have a chapper to on chief justice rhenquist, and the humor was clear and he was ver much interested in makin t court a fun p to work. maybe because he clerked there many years ago and it wasn't so fun. so he was volunteering writing to chief justice burger, i want to be in charge of the christmas party. here's my ideas and an eight-point plan about what we should do, get liquor and carols to sing and when we should have and it going on and on, and at the same time he is organizing betting pools with the other chambers and competition between his clerks and byron white's clerks in any manner, the putting contest. so the court isn't just a
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collection of high powered legal and political people but people who want to have fun. >> and make money off bets. >> yeah. >> any of you have researched televising the courtroom, what those views are or if you can speculate, and if you think when, if ever, it will happen. >> i think tony should go first. he has written considerably on the topic. >> only been beating the drums for cameras in the court for 30 years, and absolutely zero success, and i don't see it happening in the near future. i keep thinking the youngest generation of justices will come on and have less fear of cameras than the older justices, and they keep -- it keeps happening.
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justice kagan, seemed like the best champion of cameras in the court in a long time, and she said she was going to carry this cause into the court, and just a few months ago, she gave a speech where she was asked about it or at a talk, and she said, well, you know, i've been thinking about it and maybe not -- maybe it won't be the right thing to do. it will change the dynamics of the justices. i'm not into sure anymore. it's almost like the aura of the court descends on new justices and they don't -- suddenly decide that cameras are not a good idea. >> justice suit for famously said there would be justices in the courtroom over his dead body. i agree with tony i and know tony has been the most eloquent supporter of this. i think the chances of this happening in our lifetime are slim and none. i do think that they will be more receptive to increased
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audio availability. they now release all the audio at the end of the week when the arguments take place. i would bet in ten years that they'll stream the web -- stream the arguments live on the web in terms of audio. but i think video is a very different story, and i, too, was shocked and disappointed to see see see see elena kagan inflict width the stockholm syndrome. >> i have a question -- they're a lot 0 of talk this is the most political court in history. is this the first time in history people have said that? and that it's most political court in history, and secondly, whether that could change,
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whether the court is o'politicizeed, it's likely to stay that way. >> i don't think i've said and i don't believe this is the most political court in history. i think the court is always political. its think it's part -- it is a political institution. presidents appoint justices to reflect their political ideaol, whether it's franklin d. roosevelt trying to get the new deal -- a constitutional stamp of approval, or lyndon johnson trying to get desegregation through judicial review. and as for the most conservative reactionary of all time, i have criticisms with the roberts court but this is the court that brought us dred scott. these are really horrible decisions, and far worse than anything that this supreme court could come up with.
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so i don't think this is a more political or more right wing court than it's ever been. i do think it's political, and i do think it's considerable. >> i think at the same time it is the most activist court in hoyt, and my colleague at syracuse university has a book on this, what he has shown is that the modern court is the most activist in terms of striking down popularly enacted laws than the warren court or any court before. so in that sense the court is getting involved in issues that the american people have spoken on, issues they want, and the court has said, no, and both at the state level and federal level. that's may account for why the court's public approval ratings have declined in the last decade or so, because of their willingness to get involved in the big issues and overturn decisions the american people want. so, maybe activist is a better word than politicized. >> i'll put on my practicing
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lawyer hat instead of my fiction writing hat. i think what does get lost sometimes is that not all the decisions of the supreme court are a big political issues that you read about in the paper. i think much of the court's work, probably most of it, involves issues that people wouldn't really consider that political. bankruptcy issues, statue of limitation issues, and their efforts to resolve the conflicts in the circuit. so i think it was -- you have to step back because the media often hears about the big cases, but there's so much of the work-a-day stuff that goes on that you can't put a liberal or conservative spin on it. >> about a third of the cases are unanimous every year, and i think that's a fair judgment of how much are pretty uncontroversial. probably half or eight to one or seven to two pretty up controversial. >> one interesting thing, another manifestation of the
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public realizing the court is a political institution or the court realizing it -- i spent last summer with a professor, coding judicial attendance in the state of the union address, that from the time of woodrow wilson to present. we got this idea because of the citizen united case, and -- from president obama making a misstatement about the scope of the law. and you see over time the court struggling with their role, their public role at certain political events, like the state of the union, and the last ten or 15 years the court's presence at the state of the union has decreased. the justices saying, i don't want to be a potted plant at a political pep rally, et cetera. there's other ways to see what the public thinks of the court or the court is more aware of what it does and doesn't want to do with ac alkebulan --
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activities of the court. >> do you want to comment? >> i would say what interests me more is not how politicized the course it but whether it reflects the views of the american people, and i i don't know the answer to that but i think that's a very interesting question. in the past i think the court has always by and large done that. >> just briefly. one other measure buying the plate -- might be the political activity of supreme court spouses. >> do you have anyone in mind? >> is jenny thomas and her political activism sort of an outliar case or represent the fact that some of the spouses of justices are stepping out of the shadowed and asserting their own views? and what that impacts the courses about cases and justices recusing themselves. jenny thomas comes to mind.
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>> can i just say, not that you need -- i think that was a bunch of nonsense, the criticism of justice thomas for staying in the case. there was an effort to get him off the case bay bunch -- by a bunch of democratic congressmen who knew how he was going to vote, and general where thomas had been a political activist before she met clarence thomas. and they didn't have a financial stake in the outcome of the health care case. so, i think she had every right to do what she did. clarence thomas had every right to sit on that case, and thomas was fortune that the leader of the effort to gift him off the case was congressman anthony weiner of brooklyn who was later distracted by other matters. >> there has to be several jokes in there. >> my question actually has to do with the number of state
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cases being heard by the court, and i was just talking the other day about the blockbuster cases and the blockbuster season we have been having, the blockbuster term. do you think there has been an increase in either public awareness and attention to the important cases and this court is genuinely accepting more of the controversial cases and why. >> i think it ebbs and flows. i'm very sensitive to this because i'm trying to sell books, and i want -- i mean i was very fortune this last term was very dramatic. the term before was like the loser term of all time. it was -- the big case, is california's violent video game labeling constitutional or not? the only appropriate question there is, who cares?
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some terms are big and some terms aren't. this last term was quite dramatic. >> just a comment on what you have been saying. basically. it is true, however, that although justices may be chosen by presidents, because of what they think that person is going to do, which is not always true, for example, earl warren, who was certainly a -- [inaudible] -- the fascinating justice for me at the moment is justice sotomayor, and clearly you can label her a democrat, but what's your view of where she is really going to come out in the end? that's a bit of a mystery for me. >> i'm sorry. i just think that this idea that
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presidents are surprised when justices turn out differently is a myth. it dates -- [inaudible] >> that was the eisenhower presidency which was a long time ago and there have not been surprises -- you are absolutely right, earl warren, big surprise to president eisenhower. since then the number of surprises is very small. look at all nine justices on the current supreme court. [inaudible] >> as far as i can tell she will be a solid liberal like the other four democratic appointees to the court. unless you see something i don't see. i think she has taken a particular interest in the court's criminal docket. the fact she was a federal district judge and actually dealt with cases in a nonacademic, in this sort of rough and thumb of trial, adds a
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tremendous amount to court. >> my point is she seems to me to be sort of -- she is more of a work-a-day, trying to come out with correct rulings rather than trying to just -- i think many of these -- this is my position, how aim going -- how am i going to get there? >> one last quick question, i hope. >> you have had extensive dealings -- >> could you stand closer to the microphone. >> better? >> yeah. >> all of of you have had extensionsive dealings with the justices or law clerks, talking to them. there is one justice you would like to sit down and have a cup of coffee whether it's due to
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intrigue or you would enjoy their company. >> alive or dead? >> whatever -- >> conversation might not be very good if they're dead. >> i would go for john marshall. personally. but it would be difficult to arrange. >> for me it would either be holmes or frankfurter. >> i'd go with john marshall. >> clare? anyone you're more or less intrigued with? >> it's hard to choose just one. i don't know. i'm going to be a little radical and say samuel miller because he was real curmudgeon and i like curmudgeons. >> not as bad as james mcreynolds, the worst human being every to be on the court. >> and he didn't think women should have jobs, ever.
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>> the answer is, anyone but james mcreynolds. >> on that note, thank you very much. i think we've whetted the appetites of the audience about these books, and the books are there to -- for your taking -- not taking but for paying, and thank you very much. [applause]
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